Jolley: The problem with statistics and whistle blowing

Richard Alaniz is senior partner at Alaniz and Schraeder, often described as a large and influential national labor and employment firm based in Houston, Texas. To clarify, A & S is a law firm. A few days ago, Alaniz wrote an opinion piece for Meat&Poultry magazine that painfully illustrated how numbers can be manipulated to prove a premeditated point.

What agitated Alaniz was how OSHA reports whistleblower claims. Fair enough, his firm defends companies in the meat business against those kinds of claims. Of course he’s going to demand that any and all are unfounded.

He wrote “In fiscal 2012, the US Dept. of Labor’s Occupational Safety and Health Administration (OSHA) reported employees filed almost 2,787 whistleblower retaliation claims. This number has been on the rise over the past few years, up from less than 2,200 in fiscal 2009. OSHA frequently trumpets its successes in these cases. For example, it issued a press release earlier this year after a signalman with Chicago’s Metra commuter railroad line was awarded $38,080 overtime, interest, compensatory damages and attorney’s fees.

What the press release did not say, what OSHA hardly ever says except in the “Statistics” section of its website, is that this type of finding is the exception, not the rule. In fact, according to OSHA’s own statistics, a mere 2 percent of claims were found to merit agency action.”

He underlined his point by stating unequivocally that only 45 of the 2,787 cases fall into the “merit” category. The clear cut assumption he wants you to make is the other 2,742 were unfounded, maybe even frivolous wastes of time.

So he made his point, didn’t he?

Close but not quite. He forgot a few things. Let’s do a Paul Harvey on his numbers and look at ‘the rest of the story.’ Most of the claims - 1,665 - were dismissed and 565 were withdrawn before any action was taken. Do the math and you’ll see that 592 were settled. ‘Settled’ is akin to a company pleading no contest and paying a fine to make something go away. The usual boiler plate comment in the subsequent press release is “While we do not admit guilt, we’ve chosen to take this route so that we can concentrate on our core business.”

So we had 45 that were contested and were found to have merit and 592 that were settled because the company probably lacked proof that the claim had no merit. We have 640 total cases or almost 23 percent that resulted in something unfavorable to the company, a long way from the easily dismissed 2 percent claimed by Mr. Alaniz.

Simple numbers can be so complicated and misleading when you let lawyers and mathematicians play with them. The truth is 23 percent is a disturbingly large number, not to be dismissed lightly. No lawyerly Pecksniffian response will save you a nickel if you don't have your house in order.

To help you tidy up in your employment department, Alaniz made a few excellent suggestions that any company with more than a handful of employees not directly related to the owner should heed. Assuming Alaniz’ hourly rate is out of reach for most cattle ranches and feedyards, here is what he said (file this under free legal advice):

Of course a day spent walking around and listening to what your cowboys are saying under their breath or over a few beers might help, too. You don't want OSHA knocking on your door and you certainly don't want to put yourself in a position that would require a phone call to Mr. Alaniz.